Using the NLRB as a Resource.(Statistical Data Included)

Ellen J. Dannin [1]

Many unions blame the National Labor Relations Board and Act for the membership decline experienced by United States unions. Such a position is dangerous, because it deprives unions of a useful tool when they need to use every weapon available. This article provides practical advice for making the best use of the NLRB and also advocates long term strategies to increase its effectiveness as an organization created to promote collective bargaining.

Index Terms: Labor law, reform/National Labor Relations Board (NLRB)/ Union membership.

For at least a decade, it has been gospel among labor leaders that the NLRB is the enemy, that the NLRA has nothing to offer and actually weakens unions, that the NLRB should be avoided and the NLRA repealed. Former AFL-CIO President Lane Kirkland repeatedly said he would prefer "no law" to current labor law and that he prefers "the law of the jungle" over the current system because the law places too many restrictions on what unions can do to assist each other. "The law forces us, our unions, to work on products that are manufactured by law-breaking employers, employers that are in violation of the law in fact and in spirit ... [It] forbids us to show solidarity and direct union support," he declared. (News Story, 1988, 1989, 1993)

William H. Wynn, former President of the United Food and Commercial Workers Union, complained about the quality of justice labor was receiving from the Reagan appointees to the NLRB and contended that labor would seek justice "in the streets if necessary." (News Story, 1984; Cooke, 1985) Richard Trumka, while President of the United Mine Workers of America, described the NLRB as "clinically dead." (Trumka, 1994) He told Congress:

I say abolish the Act. Abolish the affirmative protections of labor that it promises but does not deliver as well as the secondary boycott provisions that hamstring labor at every turn. Deregulate. Labor lawyers will then go to juries, and not to the "gulag" of section 7 rights -- the Reagan NLRB. Unions will no longer foster the false expectations attendant to the use of the Board processes and will be compelled to make more fundamental appeals to workers. These appeals will inevitably have social and political dimensions beyond the workplace. That is the price we pay, as a society, for perverting the dream of the progressives and abandoning the rule of law in labor relations. I have a profound faith in the judiciary and jury system as it exists at common law. It has been the enduring bulwark against biased decision-making by "experts." (Trumka, 1987)

Of course, and as AFL-CIO Secretary-Treasurer Richard Trumka surely knows, the United States common law was uniformly hostile to unions and the rights of workers. So hostile were they that Congress had to pass law after law before it could outlaw the labor injunction and theories of labor unions as criminal conspiracies.

This is not to say that the NLRA and NLRB don't have flaws. Each of these critics and others have made valid charges about the NLRA, the NLRB, and problems unions face in relation to them. Taft-Hartley outlawed important union weapons. Election processes can too easily be perverted by anti-union employers, the appeal process means waiting years for a remedy, and remedies are so late and so weak it can pay to violate the law. Add to this that regional offices are perennially understaffed and some Board personnel are bureaucratic and unsympathetic.

The problem is that the criticisms have been so extreme they encourage discarding what can be a useful tool for unions, rightly understood. Union experience in New Zealand since 1991 with a law that embodies what Lane Kirkland and Richard Trumka advocated is chilling evidence that the NLRA and NLRB have value. In the first five years of moving to the law of the jungle, New Zealand union membership has declined by 50 percent and some unions have gone out of existence. The common law judges in whom Trumka places his faith have further pared away worker rights. When New Zealand unionists see how the NLRA, NLRB and other U.S. labor laws work, they positively salivate. The reality is that the NLRB and NLRA provide valuable rights and these can be made even more useful when approached in the right way.

We now understand that some criticisms were motivated by a desire to avoid examining decades of union neglect and responsibility by casting blame elsewhere. The critics tried to sound as if American unions would have been engaging in vigorous organizing activity but for the restrictions labor laws place on them. We now see that this was not the case. Empirical research demonstrates that the causes of union decline are complex, and unions themselves bear some responsibility for their failure to organize actively or to make wise use of the resources they have. (Bronfenbrenner 1998a,b).

The union movement is now engaged in a healthier and more useful attempt at understanding what has been happening with organizing and why. In doing so, it has taken on responsibility for achieving organizing success. Success at organizing demands an intelligent effort to understand the forces that affect winning or not winning workers' hearts and minds and overcoming anti-union campaigns. There can be no doubt that law has a role to play in this effort, but that role is often misunderstood.

This paper attempts to open discussion on how to make better use of the NLRA. It argues that this can come about in two key ways. First, it advocates understanding what can reasonably be expected from the NLRB as it now exists, including how to achieve the most optimal results. Second, it sets out strategies to enhance NLRA protections. This can happen even without labor law reform. This paper is about reality, strategy, and power. It does not argue that the NLRA is a panacea or that it can solve all labor's problems. No one thing -- not even if unions devoted 100 percent of their budgets and time to organizing -- can, by itself, ensure union success or failure.

What I urge here is a realistic view of when it is appropriate to turn to the NLRB and how best to make use of it as one of many resources unions can use -- both in organizing and …